Tokaji v. Tokaji, 2016 ONSC 7993

CITATION: Tokaji v. Tokaji, 2016 ONSC 7993

COURT FILE NO.: 10412/15

DATE: 2016-12-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Virginia Ann Tokaji, Applicant

AND:

Ricky John Alfred Tokaji, Respondent

BEFORE: Heeney R.S.J.

COUNSEL: The Applicant, self-represented Robert Stewart, for the Respondent

HEARD: December 19, 2016 at Woodstock

ENDORSEMENT

[1] This was a trial of an issue, as ordered by Gorman J., for the purpose of determining the valuation date, for purposes of the equalization of the parties’ net family property.

[2] The definition of “valuation date” that is relevant here is found in s. 4(1) of the Family Law Act:

valuation date” means the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

[3] The definition of what it means to cohabit is also relevant, since, as Ellies J. observed in Rosseter v. Rosseter, [2013 ONSC 7779], [2013] O.J. No. 5794 at para. 9, parties who are not cohabiting are, therefore, separated. The word “cohabit” is defined in s. 1(1) of the Act:

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage;

[4] The Applicant (“Wife”) testified that she and the Respondent (“Husband”) were married on September 19, 1986. They have three daughters, who are now 29, 27 and 25 years of age respectively. She described the marriage as “rocky” since at least 2011. She said that he ignored her, and they argued. She admits that she accused him of committing adultery.

[5] The parties lived together in a jointly-owned matrimonial home on Highway #3 until 2011. In the spring of that year, the Husband told the Wife that he wanted to separate. The Wife was in tears at the prospect that they were going to break up. They decided that they would “try to work on it”.

[6] At the same time, the Husband signed an agreement to purchase 22 Magnolia Dr. in Tillsonburg, in his name alone. The Wife did not sign the mortgage. The transaction closed on April 15, 2011. She moved in with the Husband. She agreed that there were arguments that followed, although not many when they first moved in. They shared the same bed, but she found the Husband difficult to sleep with, in that she was suffering from injuries sustained in a motor vehicle accident and when he hugged her it caused her pain. As a result, she would sleep elsewhere for up to three weeks at a time.

[7] She testified that they had sex once a month or once every couple of months. She was going through menopause and wasn’t particularly interested in sex. The last time they had sexual intercourse was May 5, 2014. She remembers that date because it was her mother’s birthday.

[8] She said that she made the meals and did the laundry for both of them. She wanted to take marriage counselling to improve their ability to communicate. He would agree, then change his mind, and then agree again. Finally, in or around July 15, 2014 he said definitively that he was not going to go to marriage counselling. The Wife takes the position that that is the effective date of separation. From that point onward, they no longer shared meals, and she no longer did his laundry. The house on Magnolia Dr. was put up for sale and sold on June 18, 2015. The parties each obtained their own accommodation thereafter.

[9] The Wife signed the Transfer on the sale of Magnolia Dr., not as an owner but for the purposes of giving spousal consent to the transfer. Mr. Stewart, for the Respondent, conceded on the record that Magnolia Dr. was a “matrimonial home”. The definition of that term is found in s. 18(1) of the Act:

18. (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

[10] This concession means that the parties did cohabit at the Magnolia Dr. residence as their family residence for at least some period of time since the Respondent acquired it on April 15, 2011.

[11] The Husband testified that the marriage was indeed “rocky”, although he puts the start of those problems as far back as 2008. The main problem was repeated, and unfounded, allegations that he was committing adultery. After the children had grown up and moved out, he had had enough, and at the beginning of February, 2011, he told the Wife that he wanted a separation.

[12] The Husband testified that, when the Wife became aware that he was purchasing Magnolia Dr., she called him at work, hysterical and in tears. She couldn’t believe that he would be buying a home and leaving her. They later sat down and had a conversation. He said that if she would stop accusing him of things that he wasn’t doing, and to get help and carry on as a wife, that they would try to make it work as husband and wife.

[13] He testified that by June of 2011, the accusations began again. He said he started sleeping on the couch, although he agreed that the Wife’s description of them not sleeping in the same bed for periods of up to 3 weeks at a time was accurate. He agreed that they did resume sleeping together, he guessed about one week out of each month. They would have an argument, he would give in and say “let’s try it again”. But a week or two later, she would be at it again.

[14] He was asked, in chief, who prepared his food, and he responded “a lot of times I did it myself”. He said that for the last year they were cohabiting he made his own meals, which meant the period from the end of 2013 through 2014. He said he also did his laundry and grocery shopping.

[15] They did not attend any social occasions together.

[16] He did not disagree with the Wife’s testimony that the last time they had sexual intercourse was May 5, 2014. Prior to that, they did have a sex life together but it was “few and far between”.

[17] The Husband takes the position that the parties began living separate and apart, under the same roof, as of the summer of 2011.

[18] In Greaves v. Greaves, [2004 25489 (ON SC)], [2004] OJ. No. 2522 (S.C.J.), Mesbur J. summarized the factors to be considered in determining if the parties are living separate and apart or not. She adopted the criteria identified by Weiler J. (as she then was) in Oswell v. Oswell, [1990 6747 (ON SC)], [1990] O.J. No. 1117 (H.C.J.), a case which Mr. Stewart relies on as a leading authority. At para. 34, Mesbur J. said this:

It is true that every marriage is different. Parties can live apart under the same roof, and can still cohabit even if they live in separate locations. The court must look at various objective factors to determine if the parties are living apart or not. Oswell v. Oswell perhaps best sets out the criteria for the court to consider. These include the following:

(a) there must be a physical separation ... Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;

(b) there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;

(c) the absence of sexual relations is not conclusive but is a factor to be considered;

(d) other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

(e) Although the performance of household tasks is also a factor ... weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

(f) The court must have regard to the true intent of a spouse as opposed to a spouse's stated intent ... [a]n additional consideration ... in determining the true intent of a spouse as opposed to that spouse's stated intentions is the method in which the spouse has filed income tax returns.

[19] Applying the relevant factors to this case, there was no real physical separation until in or about July, 2014. They continued to share the same bed at least one week each month. As to sharing meals, prepared by the Wife, there is a conflict in the evidence. The Wife says that she prepared their meals until mid-July, 2014. The Husband said that for the last year of cohabitation he prepared his own meals. Since they lived in the same house until Magnolia Dr. was sold on June 18, 2015, that would mean that he prepared his own meals from June, 2014 onward.

[20] He then attempted to qualify his answer by saying that this meant from the end of 2013 through 2014. I have difficulty with that testimony. On the non-legal meaning of cohabitation, his answer accords with the Wife’s testimony. If he is referring to the legal meaning of cohabitation, that would mean that he considered cohabitation to have ended at the end of 2014, and for that last year he prepared his own meals. That does not make sense.

[21] On balance, I prefer the evidence of the Wife on this point.

[22] Although the parties did not vacation together, I accept the Wife’s testimony, which was not challenged by the Husband, that taking vacations was not something they did during their marriage.

[23] They also appeared to engage in very few social activities, save for dinners with their children and extended families. Photographs were filed by the Wife from Christmas Day, 2013, and March 2, 2014, showing the two of them with their daughters, looking objectively like a happy family. Indeed, in the photo from March 2, 2014, the Wife is sitting beside the Husband with her arm around his neck and her head resting on his shoulder, while he holds their infant grandchild. That image is not consistent with what one would expect from a couple that have permanently separated.

[24] The parties continued to operate a joint bank account at Scotiabank into July, 2014. Their account for utilities with the Town of Tillsonburg for 22 Magnolia Dr. was in joint names throughout. The Wife continued to participate in the operation of the Husband’s business “That Water Place”. She put the business logo on her car in May, 2013, and purchased radio advertising on November 29, 2013. The Facebook page for the business, posted sometime after April 2013, contains a description of the business authored by the Husband. He describes the business as “locally owned and family operated! My wife (Virginia) and myself (Rick) have lived and worked in and around the Tillsonburg area for most of our lives. We continue to live in the area where we raised our 3 daughters and now we have an opportunity to serve our community!”

[25] The manner in which the parties identified themselves for purposes of income tax has been repeatedly held to be a relevant factor. The Husband’s 2013 Income Tax Return is filed in the continuing record. On page 1, he notes his status on December 31, 2013 as “married” and his spouse’s name is Virginia.

[26] It has been held that the absence of sexual relations is not conclusive. In my view, however, where there is the presence of ongoing sexual relations, even as infrequent as once every couple of months, while the parties are physically living together, that is a strong factor in favour of a finding that the parties are cohabiting. I have already noted that the definition of “cohabit” is “to live together in a conjugal relationship”. Black’s Law Dictionary, Seventh Ed., defines “conjugal” as follows:

Of or relating to the married state, often with an implied emphasis on sexual relations between spouses .

[27] The final act of intercourse occurred on May 5, 2014, just prior to the date that the Wife pleads the parties began living separate and apart but under the same roof.

[28] While this marriage was rocky, I am satisfied on all of the evidence that both parties continued to hold out some hope that the marriage could be saved. When the Husband purchased Magnolia Dr., they moved into that new residence together, so that they could “try to make it work as husband and wife”, as the Husband put it. When problems erupted thereafter, they would argue, but he would give in and say “let’s try it again”. I conclude that there remained a “reasonable prospect of the resumption of cohabitation” throughout this period, until the Husband announced that he would not participate in marriage counselling. It was not until that point that the marriage was truly over.

[29] Accordingly, I find that the valuation date for purposes of the equalization of net family property is July 15, 2014. Hopefully that ruling will help to facilitate settlement when the matter returns for a Settlement Conference on March 16, 2017 at 11:30 a.m.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: December 20, 2016